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Monday, 19 September 2016

This blog contains a chronology and key official links regarding the EU-US Privacy Shield, which replaced the EU-US Safe Harbor scheme, as a resource for ease of historical reference. As I’m UK-based, this inevitably has a UK slant, so any suggestions of further links would be welcome. (I aim to record official links only, not links to news stories, unless they provide useful information not available officially)

Snowden’s revelations of mass surveillance by US and other countries’ intelligence or security authorities kickstarted Safe Harbor’s demise and its replacement by the Privacy Shield. With a few exceptions, the chronology below starts with the Schrems ruling by the Court of Justice of the European Union (CJEU) on 6 October 2015, where the CJEU invalidated the EU-US Safe Harbour framework.

The links in this blog are up to date as of 6 August 2017.

Key current links

CJEU:

Challenges to the Privacy Shield are in progress before the Court of Justice of the EU: by Digital Rights Ireland (Case T-670/16) and La Quadrature du Net & others (Case T-738/16)

Unfortunately, unlike with the old Safe Harbor page, no running total of the current aggregate number of Shield subscribers is shown; this isn’t hard to code, and I hope they’ll introduce that feature (which I’ve requested)

Preparation of the Privacy Shield annual Joint Review, WP29 press release 13 June 2017 - lists WP29's key concerns: legal guarantees regarding automated decision making, any DoC guidance on the application of the Privacy Shield principles to organisations acting as agents/processors, definition of human resources data; evidence that bulk collection, when it exists, is “as tailored as feasible”, limited and proportionate, information on the nomination of the four missing members of the PCLOB, the appointment of the Ombudsperson and procedures governing the Ombudsperson mechanism

Feedback from the visit of Working Party 29 Chair, Isabelle Falque-Pierrotin to Washington, WP29 press release, 5 April 2017 - emphasis added:

"...The FTC and the Ombudsperson reiterated their general support to the Privacy Shield and their willingness to help the European Commission and the WP29 in their annual review. However, some of the key functions in the Privacy Shield architecture still need to be definitely appointed following the US election (Ombudsperson, FTC commissioners and PCLOB members). In addition, the organization of the annual review must be discussed in depth and in detail with the US authorities especially regarding access to documents. In that regard, Isabelle Falque-Pierrotin recalls that the objective of this annual review exercise is to verify through concrete evidences if US commitments under the Privacy Shield are fulfilled. It is essential that US authorities provide substance and demonstrate to EU stakeholders that the system is in place and works effectively so that this instrument ensures real and effective protection to EU data according to EU standards. The civil society expressed its concerns on the current context at national level especially on the renewal of Section 702 and on the overturn of FCC ebroadband privacy rules. The US Business industry supports the Privacy Shield as a solution bringing legal certainty to their transfers of data from the EU. In this context, the WP29 engaged at this plenary the discussions with the Commission as regard the organization of the joint review."

Taking data protection into a digital and globalised era: Joint Statement by Vice-President Ansip and Commissioner Jourová ahead of the 2017 Data Protection day, including: "Now, over 1700 companies have signed up to the Privacy Shield, with 700 further applications in the pipeline. We will continue to promote our data protection values at international level. This is why we will actively engage with key partners, such as Japan and South Korea, to reach adequacy decisions."

26 July 2016

the continuing lack of ‘specific rules on automated decisions and of a general right to object’

lack of clarity regarding how the Privacy Shield’s principles apply to processors

guarantees regarding the Ombudsperson were less strict than ‘expected’

lack of ‘concrete assurances’ that US authorities do not engage in mass indiscriminate data collection (despite ODNI’s commitment not to do so)

the first joint annual review of the Privacy Shield will be a ‘key moment’ for assessing its robustness and efficiency, and the review’s results regarding US authorities’ access to data transferred under the Privacy Shield ‘may also impact’ Mechanisms such as SCCs and BCRs

Does this imply that most DPAs will hold off from taking action regarding SCCs or BCRs until the first annual review?

At the 4 July 2016 meeting, ‘It was agreed to make a limited number of amendments to the draft decision and, in agreement with the U.S., to the Annexes’

At the 29 June 2016 meeting, the Commission explained it had worked with the US to amend the draft documents, particularly Annexes I, II, III and VI, and made changes to the draft adequacy decision ‘aimed at reflecting the new elements in the Annexes as well as better presenting and clarifying certain aspects’

The redrafted documents were circulated to the Committee before the 29 June meeting; some documents were leaked in June, presumably the same as this set

25 May 2016

Ireland:

Irish Data Protection Commissioner announces it is to refer the validity of SCCs to the CJEU

Note: the model clauses Decisions suffer from the same flaw regarding DPA powers as the Safe Harbor Decision, see Schrems summary below, and the Commission has not corrected that defect despite its November 2015 Communication (see below), so the SCCs Decisions could well be invalidated on that basis alone, regardless of US surveillance issues

13 April 2016

WP29 issued its opinion on draft Privacy Shield documents and a document on essential guarantees regarding state surveillance.

the proposed new recourse mechanisms seemed difficult for individuals to use and needed further clarification; and

the draft decision contained only limited information regarding the complex issue of access to Privacy Shield data by US law enforcement authorities.

The Privacy Shield will need review after the GDPR becomes applicable in 2018.

Working Document 01/2016 on the justification of interferences with the fundamental rights to privacy and data protection through surveillance measures when transferring personal data (European Essential Guarantees) (WP237) - 4 essential guarantees regarding intelligence activities, based on Schrems and other relevant EU and European Court of Human Rights case law:

Clear, precise, accessible rules for processing, enabling individuals to have reasonable foreknowledge of what might happen to their personal data

Note: the 29 Feb draft adequacy decision, linked to from that press release, now links only to the final July 2016 adequacy decision, which is problematic from a historical accuracy and research perspective. Fortunately, the Internet Archive has archived the original 29 Feb 2016 draft Privacy Shield adequacy decision.

Model clauses (SCCs) and BCRs still usable for transfers to US; also derogations

The Commission is ‘shortly’ preparing a decision, to be adopted pursuant to the applicable comitology procedure, replacing the provision limiting DPAs’ powers (one of the bases on which the Schrems court invalidated the Safe Harbour Decision) in all existing adequacy decisions (pgs. 14-15)

No such decision has been issued as at 19 September 2016

27 Oct 2015

There is still a measure of protection for personal data transferred under the scheme – the privacy principles that members sign up to are still positive, for instance. But the assurance that meant Safe Harbor was automatically considered to provide the adequate protection required under the 8th data protection principle is no longer there

Don’t panic, take stock, make your own mind up (self-assessment of adequacy)

26 October 2015

Germany:

Rhineland-Pfalz’s DPA asked 122 large organizations how they were implementing their US transfers; 53% answered satisfactorily, with the DPA remarking, without mentioning SCCs, that their privacy-protective positions regarding ‘no-cloud policies’ or preference of EU providers had paid off

21 October 2015

Germany:

DSK Position Paper - Special meeting of the Conference of Data Protection Commissioners (DSK) (German DPAs) in Frankfurt

Transfers to the US based ‘exclusively’ on Safe Harbor are ‘inadmissible’

The admissibility of transfers to the US based on model clauses (standard contractual clauses) or binding corporate rules (BCR), is also questionable

For the time being, [German] data protection authorities will not issue any new permission for data transfers to the US based on binding corporate rules (BCR) or data export contracts.

Presumably “data export contracts” are ad hoc contracts not model clauses, which strictly under the DPD should not require authorisation

16 Oct 2015

‘massive and indiscriminate surveillance’ was a ‘key element’ of the CJEU’s analysis

urgent ‘legal and technical’ solutions needed to enable transfers to ‘the territory’ of the US ‘that respect fundamental rights’

SCCs and BCRs still usable (although DPAs could still investigate complaints)

if, by the end of January 2016, no appropriate solution was found with the US, and depending on its assessment of transfer tools, EU DPAs were ‘committed to take all necessary and appropriate actions, which may include coordinated enforcement actions’.

6 Oct 2015

Art. 1 was invalid – it did not comply with Art. 25(6) DPD or the Charter as it did not find, duly stating reasons, that that the US in fact ‘ensures’ an adequate level of protection by reason of its domestic law or its international commitments. No need to consider content of Safe Harbour principles.

Art. 3 was invalid – it constrained national DPAs’ powers ‘under restrictive conditions establishing a high threshold for intervention’, which the Commission had no legislative competence to do because DPAs must have ‘complete independence’ to review data subject claims under Art. 28 DPD and the Charter

As Art. 1 and Art. 3 were inseparable from the rest of the Decision, the entire Decision was invalid

No Commission adequacy decision may prevent national DPAs from examining individuals’ claims regarding the inadequate protection of their personal data transferred to a third country; but neither national courts nor DPAs can declare Commission decisions invalid, only the CJEU can do so

When considering the ‘adequacy’ of protection in a third country for the purposes of a Commission Art.25(6) decision, the test is whether the country’s legal regime provides ‘essentially equivalent’ protection

Although strictly the court’s decision rested on the Safe Harbor Decision being invalid for the reasons stated above, but it also outlined requirements for EU legislation interfering with the Charter’s fundamental rights to private life and data protection to be valid (drawn on by WP29 in its April 2016 opinion)

Note: all other Commission adequacy decisions, eg on SCCs or ‘whitelisting’ certain countries for transfers, contain the same wording as the invalidated Art. 3 of the Safe Harbour Decision - so they are all also at risk of invalidation for that reason alone

Tuesday, 17 May 2016

Under the General Data Protection Regulation (Regulation (EU) 2016/679), the European Commission has the power to make decisions in certain areas by way of "implementing acts", subject to approval of the relevant act by a committee under Art. 93(2) of the GDPR - which will no doubt become known as the Article 93(2) Committee (or Article 93 Committee).

Flowchart

Below is a flowchart I prepared showing the Article 93(2) procedure. Click on the small image below to download the full PDF flowchart (note: amended 2 June 2016 to expand on what "positive", "negative" and "no opinion" mean).

Article 93(2) GDPR

The areas where the Article 93(2) Committee procedure applies are as follows; some are quite significant so it's important to know how the procedure works.

International transfers

Most of these areas relate to "international transfers" of personal data to third countries outside the European Economic Area or to international organisations:

Making decisions on the adequacy of protection of third country, territory or one or more specified sectors within a third country, or an international organisation – Art. 45(3) – or conversely on inadequacy, and repealing, amending or suspending previous adequacy decisions – Art. 45(5)

Adopting standard data protection clauses for allowing international transfers (the successor to the current model clauses or standard contractual clauses)– Art. 46(2)(c)

Other areas

Giving EU-wide validity to an approved code of conduct, amendment or extension submitted to it (following its approval by an SA and the European Data Protection Board) - Art. 40(9)

Laying down technical standards for certification mechanisms and data protection seals and marks, and mechanisms to promote and recognise those certification mechanisms, seals and marks - Art. 43(9)

(Note that the last two are relevant to international transfers also, in that transfers may be permitted to recipients who adhere to an approved code or obtain an approved certification, and who also make legally-binding commitments to apply the "appropriate safeguards" - Art. 46(2)(f).)

Specifying the format and procedures for mutual assistance betwee SAs and arrangements for the electronic exchange of information between SAs, and between SAs and the Board, in particular the standardised electronic format for SAs to supply information requested by other SAs – Art. 61(9)

Implementing acts of general scope to specify arrangements for exchange of information by electronic means between SAs and between SAs and the European Data Protection Board - Art. 67.

The proposed EU-US Privacy Shield, intended to replace the Safe Harbour regime invalidated by the Court of Justice of the EU in Schrems, is currently being considered by a committee of representatives of EU Member States under Article 31 of the Data Protection Directive - known, of course, as the "Article 31 Committee".

When considering proposals by the European Commission, such as its draft adequacy decision to approve the Privacy Shield, this Committee must use the "examination procedure" under the EU "comitology" process, governed by Regulation (EU) No 182/2011.

Comitology is somewhat convoluted, so I've produced a flowchart explaining the different options, depending on what opinion the Article 31 Committee issues - expected to be in June 2016, but at this rate it may be later!

Explanatory paragraph added 13 June 2016: Note that the Data Protection Directive was amended from November 2003 by Regulation (EC) No 1882/2003. That changed the Article 31 Committee procedure from the one in the original Data Protection Directive, that gave the Council the final say, to the procedure set out in Decision 1999/468/EC. The 1999 Decision was itself amended a couple of times, and eventually replaced by Regulation (EU) No 182/2011. My flowchart reflects the Regulation 182/2011 procedure, which is now the applicable procedure for comitology under Article 31 of the Data Protection Directive.

There are otherflowcharts on comitology, but mine just shows what's relevant to the Article 31 Committee and not other areas of law, and I believe it's clear but still informative.

Click on the small image below to download the full PDF flowchart (note: amended 2 June 2016 to expand on what "positive", "negative" and "no opinion" mean).